Congolese Woman Gets Bail In Cocaine Case After Delhi HC Finds Nearly 40 Hours’ Unauthorised Custody Between Hospital Discharge And Arrest

The petitioner, a national of the Democratic Republic of Congo, was intercepted at IGI Airport on 19 February 2025.

She later expelled eight capsules containing 582 grams of cocaine.

A Magistrate authorised her medical examination at Safdarjung Hospital, but the order did not authorise her detention.

She was discharged at about 8:35 p.m. on 28 February 2025 and taken to the airport; she was arrested under the NDPS Act at about 12:20 p.m. on 2 March 2025 and thereafter remanded to judicial custody.

Her earlier bail application was dismissed.

At the time of this application, she had been in custody for about one year and eight months; only two of the prosecution’s 32 witnesses had been examined.

Article 22(2) of the Constitution requires a person arrested and detained in custody to be produced before the nearest Magistrate within 24 hours, excluding time necessary for the journey; detention beyond that period requires the Magistrate’s authority.

In Directorate of Enforcement v. Subhash Sharma, 2025 SCC OnLine SC 240, the Supreme Court held that the 24-hour period runs from actual physical custody, and that detention beyond it without production before a Magistrate violates Articles 21 and 22(2) and vitiates the arrest.

Vihaan Kumar v. State of Haryana, (2025) 5 SCC 799, establishes that later remand orders, filing of a charge-sheet, or cognizance cannot cure an unconstitutional arrest.

The Court also relied on Habiob Bedru Omer v. Customs, 2025 SCC OnLine Del 4263, which held that unauthorised custody, including custody in hospital, cannot be justified by the person’s medical condition and may vitiate the arrest.

For bail, the Court applied Section 483 of the BNSS and considered Union of India v. Chidiebere Kingsley Nawchara, 2026 SCC OnLine SC 1585, including its directions concerning bail for foreign nationals accused of commercial-quantity offences.

The Court found that, after discharge, the petitioner remained under Customs control at the airport and was not free to leave.

The respondent’s records showed that she was neither arrested nor produced before a Magistrate until nearly 40 hours after discharge; her request to rest did not amount to consent to detention beyond 24 hours or displace the constitutional requirement of production before a Magistrate.

The medical-examination order did not authorise detention or cover the period after discharge, and the respondent did not explain the further interval between the conclusion of the Panchnama proceedings and the petitioner’s arrest.

The Court therefore held that the post-discharge detention violated Articles 21 and 22, rendering the arrest vitiated; it expressly left open whether the period of hospitalisation itself constituted custody.

The Court also noted the petitioner’s substantial period in custody and the limited progress of the trial.

The Court also directed verification of the sureties and the petitioner’s address and contact details before release, creation of a lien or charge over each surety’s property, and written intimation to the Democratic Republic of Congo’s Embassy; if the petitioner could not secure two sureties despite sufficient effort, she could seek relaxation from the Trial Court.

The Trial Court was requested to expedite the proceedings, and the Court clarified that its observations were confined to the bail application.